The opinion of the court was delivered, April 2d 1874, by
Williams, J. — It is clear from ad the evidence in this case, and under the instructions of the court, the jury must have found that the accident which resulted in the loss of the plaintiff’s leg, would not have happened if she had not been permitted to ride on the front platform of the defendant’s car. If the rules of the company had not forbidden it, there can be no doubt that it was gross negligence for the driver'to allow children as young as the plaintiff and her companion, to get on the front platform and to ride there. If they got on without his permission, instead of consenting that they might remain on the platform, it was his duty to compel them to go inside the car, or to stop and put them off; and if the plaintiff was injured by his negligence in allowing them to ride on the platform, the company is clearly liable for the injury, unless the plaintiff’s negligence contributed to produce it. But negligence cannot be imputed to one who has not sufficient capacity or discretion to understand the danger "and to use the proper means to guard against it. In this case it is conceded that' negligence is not imputable to the plaintiff, who was an infant of tender age, and not of sufficient capacity to foresee the danger to which she was exposed. What matters it, then — even if the evidence would warrant the inference — that the plaintiff’s companion, who was a child only eleven years old, may not have done all she could to prevent the plaintiff from jumping off the platform while the car was in motion? or that, when she saw her in the act of jumping, she may have been guilty of indiscretion or carelessness in pushing or swinging her from the car, and that her negligence in this respect may have contributed to the accident ? The plaintiff was no more *425responsible for the conduct of her companion than she was for her own; and the negligence of her companion — even if negligence could be imputed to a child of her age — cannot be regarded as the negligence of the plaintiff, for she was not in her custody or subject to her control. The plaintiff was in her company, but not in her keeping. The only relation which these girls sustained to each other was that of companionship. The older girl was sent on an errand, and the plaintiff, without the consent or knowledge of her parents, went with her. As they were returning home, both got on the front platform, while the car stopped for passengers; and if they did not get on with the driver’s permission, as testified by the older girl, they were allowed to remain and ride there with his knowledge and consent. The driver was guilty of culpable negligence, as already suggested, in allowing them to ride on the front platform, whether he gave them permission to get on or not; and the co'mpany is responsible for the driver’s negligence if it was the cause of the plaintiff’s injury. In answer to the defendant’s points the court instructed the jury that, “ if the injury sustained by the plaintiff was not caused by the negligence of either of the defendant’s officers, viz.: the driver or conductor, then the plaintiff will not be entitled to recover. * * * If it was the duty of the driver or conductor to prevent children from riding on the platform of the car, and if the injury complained of was caused by the neglect of either of these officers to do their duty, then the plaintiff will be entitled to recover in this action. * * * If the injury was caused by Amanda Lappe pulling this child under the wheel, and not by any negligence of the officers of the company, then the plaintiff will not be entitled to recover, and your' verdict will be in favor of the defendant.” These instructions were more favorable than the company had any right to ask, and there was no error in refusing to charge as requested. Under the facts disclosed by the evidence no instructions could have rightfully been given that would have shielded the company from liability for the injury occasioned by the driver’s negligence in allowing the plaintiff to ride on the front platform of the car. It is high time that the directors of a passenger railway company should' understand that it is their duty not only to make and publish rules forbidding their conductors and drivers from allowing “ children to get on and off the front platform,” or to ride there,'but to see that these rules are rigidly enforced by their employees. Under no circumstances should they permit children to get on and off the front platform of a street car, much less to ride in a place of so much danger to life and limb. If they do, negligence is imputable to the company, and it will be held responsible for any injury occasioned thereby.
There was no error in allowing the printed rules of the company given in evidence by the plaintiff to be sent out with the jury. 'It was clearly a matter within the discretion of the court. *426If the paper had been objected to because it contained other rules than those given in evidence, the objection would doubtless have been sustained. But the other rules had no hearing whatever upon the issue, and, even if they were read by the jury, they could not possibly have done the defendants any harm. The judgment, therefore, ought not to be reversed for a technical error which did no injury.
Judgment affirmed.